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U,S.  Circuit  Court  (9th  district) 

James  Morrison,  vs ,  3.  V. -,   .Llezes, 
and  others,  in  equity.  Motion  for  an 
injunction.  Opinion  of  his  Honor 

OQ'den  Hoffman, 


HI 


-^ 


.r^' 


|n  ilje  Cirniit  Court  of  tljc  Initcl)  ^tate, 

FOR  THE  DISTRICTS  OF  CALIFORNIA. 


JAMES  MORRISON, 


vs. 


S.  M.  MEZES, 

AND   OTHERS, 
IlSr  EQUITY. 


MOTION  FOR  AN  INJUNCTION 


DENYING  THE   MOTION. 


SAN  FRANCISCO: 

PAINTER   &   COMPANY,  BOOK   AND  JOB   PRINTERS. 

610    CLAY    STREET. 
1861. 


VI  T, 


Snto  ^tateB  ffirmit  fart 

FOR  THE  DISTRICTS  OF  CALIFORNIA,  IN  AND 
FOR  THE  NORTHERN  DISTRICT. 


I      JAMES   MORRISON, 

IN    EQUITY 
i       S.   M.    MEZES,  etal. 


The  Defendants,  in  this  case,  are  the  representatives  of 
the  original  grantees  of  the  rancho  called  "  Las  Pulgas." 

Their  claim  having  been  finally  confirmed  by  the 
Supreme  Court,  the  rancho  was  surveyed,  its  boundaries 
determined,  and  a  patent  issued. 

On  this  patent  an  action  of  ejectment  was  brought  at  a 
former  term  of  this  Court,  to  obtain  possession  of  part  of 
the  lands  included  within  it. 

On  the  trial,  evidence  was  oifered  on  the  part  of  the 
defense,  to  show  that  the  survey  and  patent  were  erro- 
neous, and  that  they  embraced  lands  not  properly  included 
within  the  true  boundaries  of  Las  Pulgas. 

^91188 


This  defense  was  overruled  by  the  Court,  on  the  ground, 
that  the  Defendants  having  neither  a  survey  or  patent, 
could  not  at  law  dispute  the  perfect  legal  title  of  the  Plain- 
tiffs. 

The  case  was  taken  by  writ  of  error  to  the  Supreme 
Court,  where  the  judgment  of  this  Court  was  affirmed,  and 
the  case  remanded  for  further  proceedings. 

A  writ  of  restitution  was  accordingly  issued,  and  this 
bill  is  filed  to  obtain  an  injunction  to  stay  all  proceedings, 
and  that  the  Plaintiff  to  the  ejectment  may  be  decreed  to 
convey  to  the  present  Complainant,  the  land  whereof  he  is 
in  possession,  and  which  is  alleged  to  have  been  errone- 
ously included  within  the  boundaries  and  patent  of  Las 
Pulgas. 

The  present  Complainant  was  not  a  party  to  the  eject- 
ment suit.  He  has  since  acquired  his  interest  in  the  land 
by  purchase  from  one  of  the  Defendants. 

It  is  alleged,  in  the  bill,  1st :  That  by  the  decree  of  con- 
firmation the  Pulgas  Rancho  was  limited  to  a  tract  of  one 
league  in  breadth  from  the  bay,  westwardly ;  and  2d,  That 
if  it  be  deemed  to  extend  to  the  valley  known  as  the 
"  Canada  de  Paymundo,"  that  boundary  is  to  be  found  by 
running  a  line  on  the  crest  of  the  hills  which  bound  the 
valley  on  the  east,  and  not  by  running  it  at  the  westerly 
base  of  those  hills,  and  where  the  level  land  of  the  Canada 
begins,  as  has  been  done  by  the  Surveyor  General. 

The  title  under  which  the  Complainants  hold,  is  derived 
from  Juan  Coppinger,  the  original  grantee  of  the  "  Caiiada 
de  Raymundo." 

The  boundaries  of  that  rancho,  as  expressed  in  the  grant, 
and  the  final  decree  of  confirmation,  are,  on  the  east,  by 
the  rancho  of  "  Las  Pulgas  ;"  on  the  west,  by  the  Sierra 
Morena ;  on  the  south,  by  the  Rancho  of  Martinez  ;  and 
north,  by  the  Laguna. 


The  grant  of  Las  Pulgas,  as  confirmed  by  the  Supreme 
Court,  is  bounded,  "  on  the  north,  by  the  Arroyo  of  San 
"  Francisquito ;  on  the  south,  by  that  of  San  Mateo;  on  the 
"  east,  by  the  Estuary ;  and  on  the  west,  by  the  Canada  de 
"  San  Raymundo,  the  said  land  being  of  the  extent  of  four 
*'  leagues  in  length,  and  one  in  breadth,  be  the  same  more 
"or  less." 

There  is  thus  no  conflict  of  title,  as  between  Las  Pulgas 
and  the  subsequent  grant  to  Coppinger,  for  the  latter  calls 
for  the  line  of  Las  Pulgas,  asthe  eastern  boundary. 

That  line  having  been  established  by  competent  autho- 
rity, the  claimant  of  Las  Pulgas  has  obtained  the  full 
legal  title  to  all  the  land  in  dispute. 

But  it  is  alleged  that  the  tract  in  dispute,  properly 
belongs  to  the  Canada  de  Raymundo  Raucho,  and  that 
the  claim  for  that  rancho  having  been  confirmed,  its 
owner  has  an  equitable  title,  which  he  may  set  up  in  a 
Court  of  Chancery,  as  against  the  legal  title  held  by  his 
opponent,  and  that,  in  the  meantime,  he  is  entitled  to  an 
injunction  to  stay  the  enforcement  of  the  legal  title  by  the 
patentee  of  Las  Pulgas. 

It  is  not  denied  that  Courts  of  Chancery  will  frequently 
interpose  in  behalf  of  a  party  having  the  superior  equity, 
to  restrain  the  enforcement  at  law  of  the  legal  title.  But, 
in  such  cases,  a  clear  jjrinia  facie  showing,  that  the  Com- 
plainants possess  the  superior  equity,  will  be  exacted,  and 
the  Court  will  usually  require  proof  of  other  equitable  cir- 
cumstances which  require  its  interposition. 

In  this  case,  no  fraud  on  the  part  of  either  the  Surveyor, 
or  the  Defendants,  is  charged,  nor  are  the  latter  alleged  to 
be  insolvent  or  unable  fully  to  respond  in  damages  for  the 
rents  and  profits,  if  they  should  ultimately  be  compelled 
to  convey  the  land  to  the  Complainants. 

The  suit,  which  has  at  last  terminated  in  favor  of  the  De- 


fendants,  has  been  contiimed  over  a  period  of  three  years, 
during  all  of  which  they  have  been  out  of  possession,  and 
the  present  Complainant  has  purchased  the  land  in  contro- 
versy, pendente  lite,  and  with  a  full  knowledge  of  the  ad- 
verse legal  title  of  the  Defendants. 

Under  these  circumstances,  the  Defendants  ought  not  to 
be  enjoined  from  the  assertion  of  their  legal  rights,  and 
kept  out  of  the  possession  to  which  they  have  been 
adjudged  to  be  entitled,  unless  the  Complainant  has  clearly 
shown  that  he  has  inima  facie,  at  least,  the  superior  equity. 
I  have,  of  course,  found  no  case  exactly  resembling  the 
one  under  consideration. 

It  maybe  stated,  however,  as  a  general  proposition,  that, 
if  the  right  be  doubtful.  Courts  of  Equity  will  not  interfere, 
unless  in  exceptional  cases,  where  the  Defendant  is  insol- 
vent, where  irreparable  mischief  is  threatened,  and  the  like. 

"Where  the  right  of  a  party  is  doubtful,  the  Court  will 
"  not  grant  an  injunction  to  prevent  an  illegal  interference 
"with  the  same."     (3  Paige,  213.) 

"An  injunction  should  not  be  granted  to  secure  a  claim 
"  to  statute  privileges,  if  the  right  be  doubtful."  (3  Cowen, 
713.) 

"  To  warrant  a  Court  of  Chancery  in  issuing  an  injunc- 
"  tion,  strong  prima  facie  evidence  of  the  facts  on  which  the 
"  Complainant's  equity  rests,  must  be  presented  to  the 
"  Court,  to  induce  its  action."  (Union  Bank  of  Maryland 
v.  Poultney,  8  Gill  and  Johns.,  324.) 

"  Where  there  is  doubt  as  to  whether  the  Complainant's 
"  trade  mark  has  been  actually  pirated,  in  such  a  manner 
"  as  to  be  likely  to  deceive  and  impose  upon  his  customers, 
"  the  Court  will  not  grant  an  injunction  until  the  hearing, 
"  or  until  the  Complainant  has  established  his  right  by  an 
"  action  at  law."    (Partridge  v.  Menck,  2  Barb.,  Ch.  H.,  101.) 

"  In  order  to  support  a  motion  for  an  injunction,  the  bill 


"  should  set  forth  a  case  of  probable  right,  and  a  probable 
"  danger  that  the  right  would  be  defeated,  without  the 
"  iuterposition  of  the  Court."     (2  Dallas,  405.) 

With  regard  to  injunctions,  after  judgment  at  law,  it  is 
laid  down  by  the  Supreme  Court,  as  a  general  principle, 
"  that  any  fact  which  proves  it  to  be  against  conscience  to 
"  execute  such  judgment,  and  of  which  the  party  could  not 
"  have  availed  himself  in  a  Court  of  law,  or  of  which  he 
"  might  have  availed  himself  in  a  Court  of  law,  but  was 
"  prevented  by  fraud,  or  accident,  unmixed  with  any 
"  fault  or  negligence  in  himself,  or  his  agents,  will  autho- 
"  rize  a  Court  of  Equity  to  interfere  by  injunction,  to 
"  restrain  the  adverse  party  from  availing  himself  of  such 
"judgment."     (Truly  v.  Wanzer,  5  How.,  142.) 

And  in  the  same  case,  the  Court  quotes  and  adopts  the 
remarks  of  Mr.  J.  Baldwin,  (Baldwin's  Rep.,  218) :  "  There 
'  is  no  power,  the  exercise  of  which  is  more  delicate,  which 
'  requires  greater  caution,  deliberation  and  sound  discre- 
'tion,  or  more  dangerous  in  a  doubtful  case,  than  the  issu- 
'  ing  an  injunction.  It  is  the  strong  arm  of  equity,  which 
'ought  never  to  be  extended  unless  to  cases  of  great 
'  injury,  where  Courts  of  law  cannot  afibrd  an  adequate  and 
'  commensurate  remedy  in  damages.  The  light  must  he 
'  dear^  the  injury  impending  and  threatened,  so  as  to  be 
'  averted  only  by  the  protecting  preventive  process  of 
'injunction." 

It  is  unnecessary  to  multiply  authorities  on  points  so 
clear.  Enough  have  been  cited  to  establish  the  general  rule 
by  which  the  Courts  are  governed  in  applications  of  this 
nature.  I  proceed  to  enquire  whether  the  Complainant 
has  made  out  such  a  case  as  will  entitle  him  to  the  inter- 
position of  the  Court. 

His  alleged  equitable  rights  are  based  on  the  ground 
that  the  true  western  boundary  of  Las  Pulgas  is  either  a 
line  drawn  from  creek  to  creek,  at  the  distance  of  one 


8 

league  from  tlae  bay,  or  a  line  drawn  along  the  crest  of  the 
range  of  hills  which  form  the  eastern  side  of  the  Canada. 

In  considering  this  question,  the  grant  and  the  evidence, 
and  decrees  in  the  Las  Pulgas  case,  and  the  recent  decision 
of  the  Supreme  Court,  in  the  ejectment  suit  of  Greer  v 
Mezes,  et  ats.y  must  be  adverted  to. 

The  claim  for  "Las  Pulgas,"  as  presented  to  the  Board 
of  Commissioners,  embraced  a  tract  of  land  bounded  on 
the  north  and  south  by  the  San  Mateo  and  San  Francis- 
quito  Creeks,  and  extending  from  the  bay  westwardly  some 
three  leagues  to  the  sierra,  or  range  of  mountains,  so  as  to 
include  the  Canada  de  Raymundo. 

The  title  to  this  tract  was  alleged  to  consist,  first,  of  a 
grant  or  license  derived  from  Governor  Borica,  in  1795 ; 
secondly,  of  a  grant  by  Sola,  in  1820  or  1821 ;  thirdly,  of  a 
grant  by  Jose  Castro,  in  1835. 

The  alleged  title,  under  the  first  two  grants,  was  rejected 
by  the  Court,  and  the  claim  confirmed,  under  the  last,  or 
Castro  grant. 

The  expediente  of  that  grant  shows  that  the  petition  was, 
as  usual,  referred  to  for  information  as  to  the  extent  and 
boundaries  of  the  land,  etc. 

Witnesses  were  accordingly  examined,  and  their  testi- 
mony is  embodied  in  the  report  of  the  Alcalde. 

The  first  of  these  witnesses  states  that  the  rancho  of  "Las 
Pulgas  "  has  an  extent  of  four  leagues,  a  little  more  or  less, 
of  latitude  north  and  south,  and  one  league,  a  little  more  or 
less,  from  east  to  west.  That  the  boundaries  are  the  Creek  of 
San  Francisquito  to  the  south,  that  of  San  Mateo  to  the 
north,  and  on  the  east  and  west,  the  estuary  and  the  hills 
situated  at  the  west  of  the  Monte  Redondo  and  the  "  Canada 
de  Raymundo. 

The  second  witness  states  the  extent  of  the  rancho  in 


9 

similar  terms,  and  that  its  boundaries  are  the  two  creeks, 
"  the  estuary  and  the  mountains  covered  with  trees." 

The  third  witness  gives  the  same  description,  except 
that  he  describes  the  Avestern  boundary  as  "  the  mountains 
"covered  with  trees  of  the  Canada  de  Raymundo." 

These  descriptions,  which  probably  furnished  to  the  Gov- 
ernor all  the  information  he  possessed,  clearly  include  the 
Canada  de  Raymundo  within  the  limits  of  "Las  Pulgas," 
while  they  at  the  same  time  display  the  incorrectness  of  the 
vague  conjectures  of  the  early  inhabitants  of  this  country, 
as  to  distance  between  natural  objects,  and  the  quantity  of 
land  included  within  notorious  boundaries. 

In  the  decree  of  concession,  the  Governor  grants  the 
tract  known  under  the  name  of  "Las  Pulgas,"  but  he 
specifies  neither  its  boundaries  or  its  extent.  In  the  final 
title,  the  limits  of  the  tract  are  described  as  follows:  "On 
"  the  south,  the  Arroyo  de  San  Francisquito ;  on  the  north, 
".that  of  San  Mateo ;  on  the  east,  the  Estuaries;  and  on 
"the  west,  the  Canada  de  Raymundo.  The  land  herein 
mentioned  is  four  leagues  in  latitude,  and  one  in  longitude." 

It  was  held  by  the  Board,  and  by  this  Court,  that,  by  the 
terms  of  this  grant,  the  tract  was  bounded  by,  and  did  not 
include  the  Canada  de  Raymundo,  notwithstanding  that 
the  rancho  known  as  "Las  Pulgas"  was  clearly  proven  by 
the  witnesses  before  the  Alcalde  to  include  that  valley. 

But  it  was  not  considered,  either  by  the  Board  or  this 
Court,  that  the  mention  in  the  grant  of  the  supposed  length 
and  breadth  of  the  tract,  should  be  treated  as  a  limitation 
of  the  quantity  granted.  For  that  estimate  of  quantity 
was  evidently  founded  on  the  loose  conjectures  of  the  wit- 
nesses summoned  by  the  Alcalde.  No  sobrante  clause  was 
inserted  in  the  grant,  whereby  the  excess  was  reserved  to 
the  nation,  and  the  land  was  described  by  great  natural 
boundaries,  and  by  a  name  known  to  indicate  an  estab- 


10 

lished  rancho,  whereof,  as  the  grant  declares,  the  petitioners 
had  claimed  to  be  the  owners  since  the  year  1800.  The 
Board,  therefore,  confirmed  the  claim  to  the  tract  of  "  Las 
Pulgas,"  with  the  boundaries  mentioned  in  the  grant, 
"said  land  being  of  the  extent  of  four  leagues  in  length, 
*'  and  one  in  breadth,  be  the  same  more  or  less."  While,  in  the 
decree  of  this  Court,  the  same  description  was  adopted, 
but  all  mention  of  the  supposed  extent  of  the  land  was 
omitted. 

This  decree  was  afiarmed  by  the  Supreme  Court,  and 
declared  by  their  judgment  to  contain  "no  error,"  but  in 
the  decree  entered  by  them,  the  form  of  the  decree  of  the 
Board  was  adopted — it  would  seem  for  the  reason,  that  it 
more  specifically  mentioned  the  several  interests  of  the 
claimants. 

On  this  decree,  the  survey  was  made  and  the  boundaries 
established. 

The  idea  of  limiting  the  tract  to  a  width  of  one  league 
from  the  bay,  and  discarding  the  call  for  the  Canada  de 
Raymundo,  would  seem  first  to  have  been  entertained  since 
the  decision  of  the  Supreme  Court  in  the  ejectment  suit. 

In  the  opinion  of  the  Court,  in  that  case,  there  are  un- 
doubtedly some  observations  which  justify  the  inference 
that  the  Court  supposed  the  western  line  of  the  rancho 
was  to  be  drawn  at  the  exact  distance  of  one  league  from 
the  bay.  But  it  will  be  noticed  that  these  observations 
were  made  in  answer  to  the  allegation  that  the  survey 
included  some  of  the  level  land  of  the  Canada,  and  seem 
to  have  been  intended  to  afiirm  the  right  of  the  claimant 
of  Las  Pulgas  to  run  the  western  line  at  least  that  distance 
from  the  bay,  rather  than  to  limit  the  tract  to  that  precise 
breadth. 

It  is  also  to  be  observed,  that  these  remarks  were  not 
called  for  by  the  case,  nor  could  the  Court  have  intended 


11 

to  decide  a  question  which  their  opinion  declares  could 
not  be  raised,  and  the  testimony  as  to  which  they  exclude 
as  inadmissible. 

The  point  passed  upon  was,  whether  the  equitable  rights, 
whatever  they  might  be,  of  the  Defendants,  could  be  set  up 
as  a  defense  to  an  ejectment  brought  by  the  holder  of  the 
legal  title. 

It  was  decided  that  they  could  not.  All  remarks,  there- 
fore, as  to  the  nature  and  extent  of  the  equitable  rights, 
thus  excluded  from  consideration,  were  clearly  obiter  dicta. 

Anxious  as  I  am  to  follow,  in  my  judgments,  even  any 
incidental  remarks  of  the  Supreme  Court,  I  should  be 
tempted  to  do  so  in  this  case,  were  it  not  that  the  opinion 
itself  discloses  that  their  attention  was  not  directed  to  some 
very  important  points,  which,  had  their  decision  turned 
upon  them,  would  not  have  been  overlooked. 

It  is  stated  that  the  Court  had,  by  its  decree,  confirmed 
the  claim  to  a  tract  "  bounded  on  the  north  and  south  by 
"  the  two  creeks,  and  on  the  east  and  west  by  the  bay  and 
"the  Canada,  being  four  leagues  in  length,  and  one  in 
breadth."  The  important  words,  "  be  the  same  more  or  less," 
inserted  in  the  decree  of  the  Board,  and  in  that  of  the 
Supreme  Court,  as  appears  by  the  mandate,  are  omitted. 

Had  the  justice,  who  delivered  the  opinion,  noticed  these 
words,  and  been  made  aware  that  a  line  drawn  one  league 
from  the  bay  would  exclude  from  the  rancho  a  valuable 
tract  lying  between  it  and  the  Canada,  it  is  but  reasonable 
to  suppose  he  would  have  reconsidered  his  observations. 
Again,  it  is  said  in  the  opinion  referred  to,  that  "it  does 
"  not  follow  that  if  the  western  line  of  Las  Pulgas,  as  run 
"  by  the  Surveyor  General,  included  level  lands  in  the  val- 
"  ley,  that  it  was  at  all  incorrect."     *     *     *     * 

"Las  Pulgas  was  entitled  to  have  the  league  in  breadth, 
"  whether  it  carried  the  western  line  over  the  hills  or  not." 


12 

In  other  words,  that  a  part,  or  even  the  whole,  of  the 
Canada  de  Raymimdo  was  to  be  included  in  the  survey,  if 
found  to  be  within  a  line  drawn  one  league  west  from  the 
bay. 

But  whether  the  grant  included  any  part  of  the  Canada, 
or  was  bounded  by  it,  was  the  principal  question  discussed 
and  adjudged  by  the  Board,  and  the  District  and  Supreme 
Courts.  In  the  decree  of  this  Court,  it  is  expressly  said 
that  the  tract  is  bounded  "by  the  Canada  de  Raymundo 
"  on  the  west,  excluding  all  of  said  Canada," — and  this  de- 
cree was  affirmed. 

In  the  decree  of  the  Supreme  Court  the  same  boundary 
is  adopted,  and  it  is  added,  "  that  as  to  the  portion  of  the 
'•premises  mentioned  in  the  petition,  which  is  not  in- 
"  eluded  within  the  boundaries  above  mentioned,  the  claim 
"of  the  petitioner  is  hereby  decreed  not  to  be  valid." 

I  cannot  consider  that  the  Supreme  Court  meant,  by  an 
obiter  diction,  in  a  case  where  the  point  was  not  open  for 
discussion,  to  modify,  in  so  important  a  particular,  its  pre- 
vious decree,  and  to  decide  that  Las  Pulgas  was  not 
bounded  by  the  Canada,  but  might  extend  over  and 
include  the  same,  or  so  much  thereof  as  might  be  neces- 
sary to  give  to  the  rancho  the  full  breadth  of  one  league. 

But  it  is  urged  that  a  juridical  measurement  of  the  tract 
was  made,  and  its  boundary  fixed  at  the  distance  of  one 
league  from  the  bay. 

It  is  to  be  noticed,  however,  that  no  record  of  this  mea- 
surement is  produced,  or  its  absence  accounted  for.  The 
proof  of  it  rests  on  the  parol  testimony  of  a  witness,  who 
says  that  he  was  present. 

It  appears,  from  his  account,  that  the  magistrate  first 
measured  from  creek  to  creek,  and  found  the  distance  four 
leagues. 


13 

He  then  measured  from  the  bay  westwardly,  "  to  a  point 

"  near,  before  entering  the  ■plain  of  the  Canada,  making  the  dis- 
"  tance  one  league." 

The  distance  between  the  creeks  considerably  exceeds 
four  leagues,  yet  it  has  not  been  suggested  that  those  two 
natural  objects  are  not  the  true  boundaries  of  the  grant,  on 
the  north  and  south.  And,  in  like  manner,  it  would  seem 
that,  if  the  juridical  measurement  is  to  be  appealed  to,  the 
western  boundarj^  is  to  be  fixed  at  "•'  a  point  near  before 
entering  the  plain  of  the  Canada,"  where,  as  stated  by  the 
witness,  marks  were  set  uj),  provided  that  that  point  can 
now  be  ascertained. 

On  the  whole,  I  strongly  incline  to  the  opinion  that  the 
western  boundary  must  be  fixed  either  at  the  point  estab- 
lished by  the  judicial  officer,  or  at  the  Canada  de  Raymundo, 
as  called  for  in  the  grant  and  in  the  decree  of  confirmation ; 
and  tli«it  it  is,  at  least,  extremely  doubtful  whether  the 
grant  and  decree  can  be  construed  as  fixing  it  at  the  pre- 
cise distance  of  one  league  from  the  bay,  irrespective  of  the 
question,  whether  the  Canada  would  thereby  be  reached, 
or  a  portion  of  it  included. 

But  it  is  contended  that,  even  assuming  the  Caiiada  to 
be  the  boundary,  it  must  be  taken  to  commence  at  the 
crest  of  the  range  of  hills  which  forms  its  eastern  side,  and 
not  at  the  point  where  the  level  land  begins. 

The  Canada  de  Raymundo  is  a  long  and  narrow  valley, 
bounded  on  the  east  and  west  by  ranges  of  hills. 

To  one  travelling  along  the  plain,  it  may  not  be,  at  all 
times,  eas}^  to  define  the  precise  point  at  w^hich  the  faldas, 
or  slopes  of  some  of  the  least  abrupt  hills  cease,  and  the 
plain  begins.  But  the  boundary  is^  perhaps,  not  more  diffi- 
cult to  establish  than  the  line  of  a  "sierra,"  or  of  lomas 
bajas,  by  which  so  large  a  portion  of  the  grants  in  this 
country  are  bounded,  and  which  is  so  frequently  ascertained 
by  the  surveyor  without  difficulty  or  dispute. 


14 

"Whether  the  Governor,  iu  designating  the  Canada  de 
Raymundo,  meant  merely  this  level  tract,  or  intended  to 
include  the  slopes  of  the  hills  to  the  east  and  west,  up  to 
their  crest,  is  a  question  of  some  difficulty. 

That  Coppinger,  when  petitioning  for  the  Canada,  could 
hardly  have  intended  to  ask  for  more  than  the  valley,  might 
be  inferred  from  the  tact  that  he  states  it  as  "about  two 
"  and  one-half  leagues  in  length,  and  three-quarters  of  a 
"  league  in  breadth,  at  the  utmost." 

The  width  of  the  tract  surveyed  to  Coppinger,  is  about 
two  and  one-half  miles,  or  nearly  one  Spanish  league,  while, 
if  his  line  be  fixed  as  now  claimed,  on  the  crest  of  the  hills, 
the  width  of  the  rancho  would  be  about  one  league  and  a 
quarter. 

The  case  presents  other  questions  equally  embarrasing. 

It  is  contended  that  a  survey,  approved  hj  the  proper 
department,  and  which  has  been  patented,  ought  to  be 
regarded  as  final  and  conclusive,  unless  where  fraud  or  gross 
mistake  is  shown ;  and  especially  where,  as  in  this  case, 
patents  have  issued  for  both  ranchos,  although  one  of  them, 
(that  for  the  Canada),  has  not  been  accepted  by  the  Claim- 
ants of  that  rancho. 

It  is  urged  that,  if  the  lines  of  patented  ranchos  be  dis- 
turbed, endless  confusion  will  ensue.  For,  whenever  the 
grant  is  for  a  specified  quantity  of  laud,  the  grantee  should 
be  entitled,  if  a  portion  of  the  quantity  surveyed  to  him  be 
cut  ofi'at  the  suit  of  a  neighbor,  to  make  up  the  deficency  by 
extending  his  lines  in  some  other  direction.  This  he  can,  in 
many  cases,  only  do  by  intruding  on  the  land  already  sur- 
veyed and  patented  to  a  neighbor,  who,  in  turn,  would  be 
entitled  to  make  up  the  quantity  granted  to  him,  by  a  simi- 
lar encrochment  on  land  patented  to  one  of  his  coliudantes, 
and  thus  the  titles  of  grantee,  and  purchasers  under  them, 
throughout  an  indefinite  extent  of  country,  would  be 
thrown  into  confusion. 

It  is  also  sugested  that,  if  the  party  seeking  to  disturb 
the  survey  and  patent,  has  already  obtained  his  full  quan- 


15 

tity  of  land,  any  portion  of  the  lands  surveyed  to  bis  neigh- 
bor, which  he  might  afterward  acquire,  would  be  in  excess 
of  the  quantity  to  which  he  was  entitled ;  and  thus,  by  ac- 
cepting the  patent,  after  the  termination  of  the  suit,  he 
might  retain  his  full  quantity  as  surveyed,  and  also  the 
quantity  cut  oft'  from  his  neighbor,  unless  the  United 
States  should  institute  a  proceeding  to  set  aside  the  patent, 
which  would  thus  give  rise  to  endless  litigation, 

On  the  other  hand,  it  is  urged  that  the  line  of  the  Pulgas 
was  fixed  by  the  Surveyor,  ex  'parte,  as  against  the  owners 
of  the  Cailada;  that  the  decrees  of  the  Court,  and  surveys 
under  them,  are,  by  law,  final  and  conclusive,  as  between 
the  United  States  and  the  Claimant,  but  not  as  against 
third  parties,  and  it  would  be  the  height  of  injustice  to 
take  from  the  owner  of  the  Canada  a  portion  of  his  land 
and  give  it  to  "Las  Pulgas,"  by  a  proceeding  to  which  the 
former  was  no  party,  and  in  which  he  could  not  have  been 
heard. 

There  is  great  force  in  these  suggestions. 

But  the  practical  hardship  is  no  greater  than  if  the  land 
east  of  the  Canada  had  been  public  land,  and  the  limits  of 
the  Canada  had  been  established  as  between  the  United 
States  and  the  owner  of  that  rancho. 

In  such  case,  the  approved  survey,  and  the  patent  issued 
under  it,  (whether  accepted  or  not.)  would  have  been  con- 
clusive. 

If  it  be  said  that  the  claimant  of  the  Canada,  in  that  case, 
would  be  justly  concluded,  because  he  was  a  party  to  the 
proceeding,  but  that  he  ought  not  to  be  concluded  by  a 
proceeding  between  the  United  States  and  Las  Pulgas,  it 
may  be  answered  that,  until  the  second  decision  in  United 
States  V.  Fossatt,  it  was  universally  supposed  that  the  juris- 
diction of  this  Court  "  was  limited  to  the  making  of  deci- 
"  sions  on  the  validity  of  the  claim,  lyreliminary  to  its  loca- 
"  tion  and  survey  by  the  Survej^or  General  of  California," 
(20  How.,  425,)  and  it  was  only  after  that  decision,  that  this 


16 

Court  exercised  any  jurisdiction  to  supervise  and  reform 
■the  surveys  under  its  decrees. 

The  settlement,  therefore,  of  boundaries  by  the  Surveyor 
General  was,  previous  to  that  decision,  practically  a  pro- 
ceeding in  which  the  claimant  was  not  heard,  except  by 
representations  addressed  to  the  Surveyor  General  or  the 
executive  officers  at  Washington,  and  there  would  seem 
no  greater  reason  in  holding  him  concluded  by  the  deter- 
mination of  the  Surveyor,  whose  action  he  has  had  no 
opportunity  of  submitting  to  a  Court,  than  the  Colin- 
doj'ite,  who  could  equally  have  addressed  representations 
and  remonstrances  to  the  executive  officers. 

But  if  it  is  to  be  considered  that  the  claimant  is  bound, 
because,  as  subsequently  decided,  he  might  have  invoked 
the' interposition  of  the  Court,  the  colindante  might  also 
be  deemed  to  be  concluded,  for  the  same  reason  ;  for  he, 
too,  might  have  been  heard  in  opposition  to  the  survey  of 
his  neighbor. 

But  it  is  unnecessary  further  to  pursue  this  discussion. 
Enough  has  been  said  to  show,  that  the  questions  of  law 
and  fact  involved  in  this  case  are  doubtful  and  difficult. 

Under  such  circumstances,  I  can  see  no  reason  for  inter- 
rupting the  exercise  by  the  Defendants  of  their  legal  rights; 
more  especially,  as  no  irreparable  injury  can  ensue  to  the 
Complainant.  The  Defendant  is  abundantly  able  to  account 
for  the  rents  and  profits,  if  the  land  should  finally  be  ad- 
judged to  the  Complainant.  The  latter  has  purchased, 
j)emiente  lite,  and  since  the  patent  to  the  Defendant  was 
issued ;  and  the  contest  seems,  in  effect,  to  be,  whether  the 
patent  shall  be  temporarily  nullified,  and  the  Complainant 
remain  in  possession,  giving  bond  to  the  Defendant,  or  the 
latter  enter  upon  a  possession  adjudged  to  be  his,  and  sub- 
ject to  the  liability  to  account  to  the  Complainant,  should 
he  succeed  in  establishing  the  better  title. 

It  seems  to  me  that  the  latter  alternative  should  be 
adopted. 

Injunction  refused. 


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